Schedule 1

Criminal Justice and Court Services Bill – in the House of Commons at 3:54 pm on 30th November 2000.

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Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 3:54 pm, 30th November 2000

I beg to move, That this House agrees with the Lords in their amendment in lieu of Lords amendment No. 121.

The amendment requires selection panels to be set up in respect of all appointments made to local probation boards by the Secretary of State after the National Probation Service comes into effect. It further requires that the board be represented on any selection panel making a final recommendation about the appointment of the chief officer.

On consideration of Lords amendments, the House rightly disagreed to an amendment that would have made local probation boards responsible for the appointment of chief probation officers. Our view is that such appointments should be made by the Secretary of State. We regard this as one of the essential elements in the creation of a truly national service that is well equipped to reduce reoffending and to protect the public.

To ensure that the National Probation Service is ready to come into being on 1 April 2001, we have undertaken preparatory work and set up arrangements for the appointment of chief officers. We have ensured that a local representative, usually the chairman designate of the board, will be included as a member of the selection panel. That is important in order to ensure adequate local input into the selection decision.

On further consideration in another place, the Government's proposals were agreed, subject to the amendment now before us. This ensures that the procedure of securing local involvement in selection that the Government have begun will continue into the new service.

I commend the amendment to the House.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) has suggested in debates on the Government's earlier versions of clauses relating to this issue that, although there may be some merit in the principle of chief officers of probation boards being appointed centrally—and we recognise that the Government have now, in national guillotine week, been forced to make further concessions—our colleagues in another place raised legitimate concerns about the proposal. In particular, the question was raised as to where the balance of responsibility should lie when a chief officer is centrally appointed. For example, if someone serving a probation order were injured during their detention in a probation hostel, who would be liable?

In my previous professional career, as well as in my parliamentary career, I have dealt with the legal side of those sentenced to probation orders. I am well aware that the questions of legal responsibility and liability are exceptionally important. Conservative Members are not convinced that the Government have addressed those concerns fully in the last-minute concession and revision that they have been forced to make. The amendment deals only with an alteration in the process of appointing the chief officer, and not with the substantive point about which my noble Friend Baroness Blatch spoke in another place two days ago.

There is little precedent for the method of appointing chief officers that the Government have now chosen. Chief constables and chief executives of national health service trusts are not appointed centrally. We have pointed out on many occasions when dealing with the Bill that the Secretary of State is proposing to give himself great powers. That is another example of the Government behaving like control freaks. It is recognised inside and beyond this place that this is a control-freak Government. The Home Secretary has undoubtedly arrogated to himself huge powers in the Bill. As it stood, the clause allowing the chief officer to be appointed directly by the Home Secretary was just another in a long line of powers that the Home Secretary was taking to himself in the Bill.

The overall power remains. The Government made a last-minute concession after the proposals were severely mauled in another place, and it is possible that it might be a way out of the problem that the Government have set for themselves. The Home Secretary has acknowledged in the House on a previous occasion that there is a tension.

We recognise that the Home Secretary has given assurances about the lines of accountability. We welcome the fact that the Government have been forced to make a concession and that they have agreed to address the concerns raised by Baroness Blatch and other Conservative peers in another place.

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We also welcome the fact that at least this section of the Bill has been allowed a further debate in national guillotine week—a week in which proper debates have been rare. For example, earlier this week, when we were considering a major piece of legislation, only two groups of amendments out of the nine listed were debated at all, and many matters on which we wished to divide the House were never even reached.

Although we feel that the Government have been right to make some concessions, concerns remain. Some of my right hon. and hon. Friends may take the opportunity of this debate to raise their continuing concerns about the powers of the Home Secretary.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The amendment that has come back to us is not what my colleagues and I wanted. We supported the position of the Lords on the previous round, when they insisted that the chief probation officer should be appointed by the board and then approved by the Secretary of State, rather than the other way round. Just for the record, the matter went back to the Lords once the Government had reversed their decision last time. The Government were nearly defeated again in a vote—their majority was only 12 earlier this week when the Bill was back at the other end of the building.

This is still a hotly contested matter. As the hon. Member for Surrey Heath (Mr. Hawkins) made it clear, it relates to the question whether we have more central or more devolved control. I shall not rehearse the arguments of my hon. Friend the Member for Taunton (Jackie Ballard) in our previous debate in this place. However, when she put the case for more local control and the Secretary of State started to put the contrary case, he soon became aware that his case was not borne out by the facts, which he was good enough to admit.

There are no universal parallels—such people are not always appointed centrally. Chairs of school governors, head teachers, chairs of governing bodies of colleges, chancellors of universities, chief executives of health authorities—a particularly good parallel example—and of health trusts are all appointed locally. There is a process, of course, and the appointments depend on what system applies. However, there is no universal rule.

We preferred the alternative proposal. However, we had to decide whether to go up and down the Corridor for another 24 hours or whether to accept an amendment that is a compromise—albeit a compromise in the right direction—and, if so, whether to amend it further. This amendment is better than nothing, but it is only a compromise position. It does two things: it provides for a selection panel process and for board representation in the selection process by the Secretary of State.

We have had a big general debate this parliamentary year about the future of the probation and prison services, and the interlinking inspectorates of both. However, we have not seen established the sort of continuous review process that would be beneficial to politicians and to professionals, would depoliticise these issues slightly and would regularly allow a proper appraisal of the good functioning of the services. I have argued before for a standing conference on the police so that there could be regular appraisal of what we need to do to reform the police service. My colleagues and I strongly believe that that would be very appropriate at present in relation to the prison and probation services.

I have one other timetabling comment. It is a sign of the year that we have had that on what is—or may be—the last day of the parliamentary year, we are considering the third Home Office Bill to have come to the House this day. This week, we have dealt with five Home Office Bills, some of which are still to complete all their stages. We had the Freedom of Information Bill on Monday; the Political Parties, Elections and Referendums Bill yesterday; the Sexual Offences (Amendment) Bill; the Disqualifications Bill; and now we are debating the Criminal Justice and Court Services Bill.

I am not against legislation when it is necessary. I am not even against having 12 Home Office Bills in a year, if necessary. However, like the Minister, I will not be unhappy if the Queen's Speech contains a smaller number. If, as the press reports say, we get no more

than six, we will be pleased. If the Government manage to consolidate the six into three—which looks as though it might be possible—we would be even happier, as would Parliament.

I repeat that I am not against legislation where it is necessary, but we should learn the lesson that it is not good to legislate on the hoof. I share the view of the hon. Member for Surrey Heath that although today, as it happens, we do not have a guillotine on this Bill, we had a guillotine on the Disqualifications Bill. We had a severe guillotine on the Political Parties, Elections and Referendums Bill yesterday and another severe guillotine on the Freedom of Information Bill on Monday. Even if we discount extended contributions—not necessarily all central to the point, although all in order—we must, as a Parliament, be able to do our job better than we can by preventing discussion of many matters and rushing discussion of a load of legislation through at the end of the parliamentary year.

We shall not object further. Given that the amendment is a compromise rather than an absolute refusal, we are prepared to accept it, although it would certainly not be our first option.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

The Minister gave the lie to the difficulties that seem to face everyone who has participated so far in the debate by reminding the House that we are dealing with appointments by the Secretary of State. When the Minister spoke of a truly national service, but with adequate local input, he summarised very well the dilemma that comes through clearly in the schedule with which we are dealing and the amendment that we are considering.

To make sense of the amendment, which refers to paragraph (2)4 of schedule 1, we have to look at the way in which the schedule is structured and so put the amendment into context. Schedule 1 deals with local boards. They are to consist of a chairman, a chief officer and not less than five other members. It is worth reminding ourselves that one of the members is to be appointed by the Lord Chancellor from among judges of the Crown court. That is all specific and straightforward enough, and would reinforce the national element of the Minister's desire. Then—here is the key to the matter—paragraph 2(3) states: The chairman, the chief officer and the other members are to be appointed by the Secretary of State. So far so good, one would have thought. Quite a key point is made in paragraph 2(4), which states: Regulations may make provision as to their appointment… This is only a permissive provision; it is not prescriptive to say that regulations "may" make provision as to their appointment. I suppose—unless the Minister tells me otherwise—that it would be perfectly possible under the schedule, certainly in theory, for the Secretary of State to appoint the board members anyway.

Amendment No. 121 says that the regulations made under section 4 "must make provision". However, as paragraph 2(4) of schedule 1 refers only to "may", there is a provisionality here—if that is a word—of which we must be aware. The Minister is looking puzzled, and I am open to correction.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I am not quite sure whether the right hon. Gentleman has read the provision properly or whether I have misunderstood his point. Is he suggesting that the Secretary of State may appoint the persons whom others, such as the Lord Chancellor, are appointing, or is he simply referring to the tenure? Paragraph 3(4) of schedule 1 states: Regulations may make provision as to the tenure of office of the members (including the circumstances in which they cease to hold office or may be removed or suspended from office).

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am grateful to the Minister, but I am looking at schedule 1(2)(4), which states: Regulations may make provision as to the appointment (including the number, or limits on the number, of members who may be appointed and so forth. The Lords amendment enhances or elaborates on that provision. As the words used in the schedule are "may make provision," the Lords amendment may never come into effect. The primary regulations may not be made. I put down that marker, which is worth bearing in mind.

We are talking about the procedure whereby most of the members of the board are to be appointed. We know that one will certainly be appointed by the Lord Chancellor, who can only appoint a Crown court judge. That much we know.

The schedule states: Regulations may make provision as to their appointment and continues, helpfully, with the words "including the number". That raises some interesting questions about the sort of number that the Minister may have in mind—or the limits on the number. The schedule continues with the words: and any conditions to be fulfilled for appointment as a member, which is an important provision. It suggests that the whole matter could be severely prescribed by regulations, thus limiting the options that may be open.

The amendment reads: Regulations made by virtue of sub-paragraph (4) and coming into force on or after the coming into force of section 4 must make provision—(a) for the selection procedure for the chairman, the chief officer and other members of the hoard who are to be appointed by the Secretary of State to include selection panels.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

Before my right hon. Friend moves on to the role of selection panels, which I apprehend will be his next point, does he share my curiosity about the appointment by the Lord Chancellor of the Crown court judge to the board? I do not dispute the appointment, but why is it to be a Crown court judge and not a member of the lay magistracy? Magistrates have far more experience of dealing with the probation service and see more of its workings than Crown court judges.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I have an eye on you, Mr. Deputy Speaker, as I suspect you may be on the point of telling me that that question is not strictly germane to the amendment. I am always loth to run foul of you, sir, so I will decline to answer my hon. Friend directly for the moment. I may return to his question.

A sequence of procedures is being built up that I assume is supposed to be helpful. Although the regulations only "may" be made, they must make provision if they are made. In the amendment, we have an apparently helpful addition to the requirement for the selection procedure for the chairman, chief officer and other members of the board, which is, "to include selection panels".

Who will appoint the panels? From my experience, what is often supposed to be a reassurance in such cases is not. If one were cynical—those who know me know that that could never be said of me—one might say that the provision amounts to additional bureaucracy, not to say obfuscation. I will not argue that case. For the moment at least, I will accept the Minister's argument at face value. We are supposed to assume that including selection panels in the process is designed to be helpful and positive, but it gives rise to the question, "Who will select the panels?"

I assume that you, Mr. Deputy Speaker, will agree that that is a very old question in politics. It is all very well trying to establish a mechanism that looks bland, neutral, innocuous or helpful, but one must look behind that. I am supposed to be reassured by the selection panel, which will play a key role in the appointment of the chairman, the chief officer and other members of the board. Who will appoint that panel? I bet I know the answer before the Minister gives it. I would not mind betting that it is the Secretary of State.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst 4:15 pm, 30th November 2000

The Minister indicates that I am right. That is not due to any great perspicacity on my part. I just know these things because it is the way the world works, and it is certainly the way this Government work. The Minister is trying to persuade us that selection panels are a good thing, but he will be the one to appoint them—technically it will be the Secretary of State, but in reality it will probably be the Minister

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Does my right hon. Friend agree that the question that he has raised goes back almost to classical times? It concerns the powers of Government and who really guards the guards—quis custodiet again. That issue is particularly relevant for this Government, above all, because they always want to take more power into their hands.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am afraid that that appears to be the case. In deciding who will be on the panel, it is inevitable that a degree of influence—not to say control—will come into the process.

For example, will the Lord Chancellor be consulted by the Secretary of State about the formation of the panel? In that case, the Lord Chancellor will have double the influence. He is already to appoint one member directly. He may even be allowed to appoint members of the panel. It could go as far as that. One immediately sees the difficulty that arises.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

As my right hon. Friend will know, I have a particular interest in what the Lord Chancellor may or may not do, as I shadow the Lord Chancellor's Department. Would my right hon. Friend be interested to know that the Lord Chancellor might be consulted behind the scenes, informally. My hon. Friend the Member for Hertsmere (Mr. Clappison) asked whether the appointments should be circuit judges or lay magistrates. It is worrying that it is not clear whether the consultations will be happening behind the scenes, with rumours and messages between Ministers. We want such decisions to be open and transparent, not the result of control freakery, on which, sadly, the Government seem to be bent.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am afraid that I agree that that is the case. I will deal with the relationship between sub-paragraph (4), the amendment and sub-paragraph (5). Of course, the latter states: Regulations must provide, so far as it is practicable to do so, for the persons appointed to be representative of the local community in the board's area. I mention that in the context of the selection process. Presumably there will have to be an attempt to develop some knowledge of the characteristics and requirements of each local area to fulfil the requirement in sub-paragraph (5).

I am running ahead of myself. Having identified the problem—or at least the implication about selection panels—paragraph (b) of the amendment states that regulations may be made in the case of the chief officer— singling him out— for the board to be represented on any selection panel … That raises another interesting question. Will the board decide what its representation on the panel will be, or will the Secretary of State decide how the board will be represented?

There could be a conflict. Let us suppose that the Lord Chancellor says, "I insist that it is my appointee on the board who will be the representative on the selection panel." The Secretary of State may say, "No. I will decide which of the board will be represented." The board may say, "No, we want to decide who will represent us on the selection panel."

It is a fair question to ask know how the process will work, since there are some doubts as to that. Guidance from the Minister would be helpful. Having said that, all that will happen is that a final representation will be made to the Secretary of State. It will come as no surprise to old hands at this business that the Secretary of State is going to do it anyway; he is subject only to a recommendation. The board is to be represented on the selection panel making a final recommendation to the Secretary of State—as I read the provision. That seems to be at odds with paragraph (a), which provides that the selection procedure will "include selection panels".

What is to be the role of the selection panels? I infer from the measure that it is only to make a recommendation to the Secretary of State. We know nothing about the composition of the panels; we do not know who will appoint them. However, we know—or I think we do—that all they will do is to make a recommendation to the Secretary of State, who will have the final say.

There is a rather unhealthy circularity in that process. I am not sure how much further forward it takes us. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) and the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) were more generous; they said that, while the process might not be perfect, it took us somewhat further. The more I ponder the matter, the less sure I am about that.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Does my right hon. Friend agree that there is a difference between my comments and those of the hon. Member for Southwark, North and Bermondsey? I was concentrating on the fact that the Government had been forced to make a concession; the hon. Gentleman said that the process was taking us in the right direction. I was rather less generous to the Government; my view is closer to that of my right hon. Friend.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am always delighted to accept a lack of generosity to the Government. That is extremely appropriate in most circumstances that I can envisage. It is for the hon. Member for Southwark, North and Bermondsey to decide how generous he will be; he is probably rather better disposed to the Government than we are.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Indeed, all too often, they are partners. However, I shall not be drawn into that, Mr. Deputy Speaker; I shall resist any temptation placed in my way by my hon. Friends to elaborate on that point.

The amendment will not add much to the process, apart from additional doubt and bureaucracy—although it will undoubtedly add more time and personnel. As soon as we start making provision for selection panels, they will have to be staffed and supported and will be subject to procedures that require time. That not only requires money—no object, of course, to this Labour Government—but could add a further time dimension to the process that might, in some circumstances, be extremely disadvantageous.

We are talking about local boards and sub-paragraph (2) of paragraph (5) of the schedule reasonably requires that: Regulations must provide … for the persons appointed to be representative of the local community in the board's area. How satisfied will we be with those rather grand figures, appointed by the Lord Chancellor on one hand or by the Secretary of State on the other, who will be making important decisions whether or not they are advised by the selection panel? That is only an option—it is not mandatory; even if the selection panel comes into being and carries out its work, it can only make a recommendation to the Secretary of State. I admit that, in those circumstances, it would be unusual for a Secretary of State to ignore such advice, but it remains a possibility.

We must be extremely careful about such provisions. No doubt it is well meaning—as such provisions often are; it comes to us from another place, and one always has due regard for the views of its Members, who include a number of experts and legal minds. However, I wonder whether the provision will have anything like the beneficial or positive effect that was undoubtedly intended.

Will the Minister tell us more about the role of the panels? How does he envisage the working out of the relationship between the Secretary of State and the Lord Chancellor? If I read aright the inclination of his head earlier on, perhaps he will be able to reassure us that it would be unusual for the Secretary of State not to accept the recommendations of the panel. The hon. Gentleman's comments would help us to make progress on this matter.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

I am glad to be able to speak on the amendment, as the subject of the Bill is of great interest to me. I add my remarks to those made by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and by my hon. Friend the Member for Surrey Heath (Mr. Hawkins).

I agree with the general tenor of my hon. Friend's remarks. He especially adverted to the open question of who would be legally responsible if anything happened to someone serving a probation order or to someone resident in a probation hostel. He may want to ask the Minister a further question on legal liability: what is the legal liability to those who are affected by the behaviour of those who leave probation hostels?

My hon. Friend will be aware of at least one important case in our dusty memories of the law of negligence—the Home Office against the Dorset yacht club. That involved the legal liability of the occupants of the yacht club to people in the custody of the Home Office.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Like me, my hon. Friend is a member of the Bar and studied such cases—perhaps more years ago than either of us would care to remember. He is right to note that I had precisely that type of case in mind when I made my opening remarks. The liability of the chief officer appointed and of the person who appoints that officer is a vital issue. I am delighted that my hon. Friend, from his considerable experience both when he was an Opposition Home Office spokesman and as a member of the Bar, is putting pressure on the Government on that matter.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

I am grateful to my hon. Friend for those remarks. I hate to point out that I have a certain amount of sympathy for some of the comments made by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), although I think that he was uncharacteristically—for a Liberal Democrat—generous to the Government. [HON. MEMBERS: "Uncharacteristically?"] I was being ironic.

There was a scintilla of truth in the hon. Gentleman's point about the volume of Home Office legislation that is being crammed before the House—including these amendments—

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. The hon. Member for Southwark, North and Bermondsey strayed almost to the limits of my patience on that point, but I let him do so because he was relatively brief.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

Indeed, Mr. Deputy Speaker. The hon. Gentleman was arguing that the matter should be properly examined so that it did not join the long list of previous failed Government measures, such as the Crime and Disorder Act 1998.

My right hon. Friend the Member for Bromley and Chislehurst correctly referred to the mechanics of the appointments. The relationship between the chief officer and the board will be important; it will affect the operation of the board in a particular area. It is similar to the relationship between the chief executive and the board of a company.

Clearly, the House of Lords originally had it in mind that the chief officer—the chief executive figure—should be appointed by the board itself; that would make an important difference to the relationship. The Government propose—as they so often do—that all appointments, including that of the chief officer, are to be made by them; the board would not be entrusted with the appointment of the chief officer. Does the amendment go far enough to ameliorate the centralisation created by the Government's top—down approach, which we see in this Bill and in so much legislation?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

My hon. Friend is an expert in these matters. Does he know, from his reading of the amendment, who will appoint the selection panels? That is surely crucial and, furthermore, germane to the point he makes.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

My right hon. Friend touches on an important point: the independence of the selection panels and of those who serve on them. I hope I do not stray too far out of order, Mr. Deputy Speaker, by pointing out that this is one more example of the Government's top-down approach. We saw it recently with the Learning and Skills Act 2000, under which similar provisions mean that local learning and skills councils are not entrusted with the appointment of their chief executive—it all has to come down from the Secretary of State.

Does the amendment ameliorate that? How independent will the selection panels be? In response to my right hon. Friend, the Minister confirmed that the selection panels would be appointed by the Secretary of State. That being the case, we need to know what sort of people will sit on the selection panels. Will the Secretary of State keep a list of those who serve on selection panels? Will one selection panel deal with all appointments, or will a panel be specially set up each time a local board or a chief officer has to be appointed? We need to know.

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Paragraph 2(5) to schedule 1 states that "the persons appointed to" the board must be representative of the local community. If one selection panel covers the whole country and deals with each board, how can it fulfil that provision and have that sort of knowledge? Can we expect that it will guided by the one person who is appointed in each case by the Lord Chancellor's Department? The Minister needs to tell us more about that.

Who will sit on those panels and how independent will they be? That is what concerns us, given that such a centralised procedure is to be put in place. How independent will the local boards be? How independent will those who appoint the chief officers of probation and make such recommendations be, given the importance of the relationship between the chief officer and the local board? We need to hear a little more from the Minister, but I am not holding my breath.

I agree with the Minister that a national service would be created. In some ways, the Government have gone too far in the direction of creating a national service. However, I parted company from him when he said that reducing reoffending and protecting the public were part of the Government's objectives and were embodied in the amendment and provision. I honestly doubt whether the provisions will help to reduce reoffending. At the end of day, the same probation officers, with the same background and training, using the same orders as those available to them under criminal justice legislation, will deal with the same offenders. I realise how difficult it is for the probation service to deal with offenders.

Perhaps the intention is to create a national structure to provide national standards, and the Government's assumption is that that will have an effect in reducing crime nationally, but I am doubtful about that. If the provision represents an attempt to change the culture of the probation service, the Minister is misguided, because its culture has changed considerably in recent years; the Government are a bit behind the times. In any event, probation officers have to work with the offenders—or their clients, as they are sometimes called. That is an extremely difficult task.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My hon. Friend spoke about some of those issues in earlier debates and knows that many of them were covered in Committee, but does he agree that, in talking about the vital issue of the legal responsibility, one of the things that most outrages the public is the terminology? People are referred to as clients when they should be called offenders.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

I understand my hon. Friend's point, but I do not want to stray down that path, Mr. Deputy Speaker.

The important issues are how much independence there will be in individual areas; how much scope there will be for local decision taking; and how much influence local boards can bring to bear on chief officers to deal with the problems in their areas. Given the Government's proposal, I doubt whether they will have the local discretion, that is so important. I doubt whether the amendment goes far enough in ameliorating the effect of the centralised structure that the Government have put in place. The amendment looks very much like a fig leaf.

I should like the Minister to say more about the arrangements for selection panels. Who will sit on them? My right hon. Friend the Member for Bromley and Chislehurst made the important point that all the procedures will cost money and require bureaucratic structures and services. When the selection panels have undertaken those processes, will the Home Secretary always accept their recommendations, or can he reject them and appoint someone he prefers? We need to know more because if the latter is the case, the amendment really is a fig leaf.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

This has been a useful debate. Many points have been made, and I shall attempt to deal with each of them. The hon. Member for Surrey Heath (Mr. Hawkins) welcomed—albeit in a rather curmudgeonly fashion—the fact that the Government had

listened to the debate and had been prepared to propose some changes to the Bill. He recognised that the Home Secretary had sought to give reassurances on several matters.

It seems to me to be clear where the legal responsibility lies. The local probation board is the employer and will be a body corporate. The board therefore has all the usual liabilities of such an organisation. It will be responsible for any action that may arise in tort. Who appoints the chief officer is irrelevant to such matters. We are dealing with how a particular person is appointed to a job, and who or which legal person—a body corporate in this case—is liable if an action arises is a separate issue, so there need be no confusion. I hope that I can reassure the hon. Members for Surrey Heath and for Hertsmere (Mr. Clappison) that that is the case. I am not sure whether any great change is involved.

We agree that chief officers will be appointed in a new way, but we believe that the system is right for a different system—a national service. There is a difference of view between the Government and many Opposition Members about the way in which the Bill has developed. We have argued for the broad principles of a national service on other occasions. This is a particular amendment, so I shall not argue about whether there should be national or local control, but simply say that the Government have listened with care to the debate and have accepted that a panel should be set up and, therefore, that there should be a selection process. Nevertheless, the decision will finally rest with the Home Secretary.

The right hon. Member for Bromley and Chislehurst (Mr. Forth) asked why the amendment contains the words: in the case of the chief officer, for the board to be represented on any selection panel making a final recommendation to the Secretary of State. He said that recommendations are not binding. Of course they are not binding. He rightly went on to say that the Secretary of State will take the final decision, but I emphasise that the Secretary of State must give full and proper consideration to a recommendation. I agree with the right hon. Gentleman it is usual to accept such a recommendation.

The right hon. Gentleman will know that any decision taken by a Secretary of State—or, indeed, any Minister—is subject to a test of reasonableness. Okay, it is Wednesbury unreasonableness, rather than reasonableness, and the Secretary of State must have a reason for not accepting the recommendation of the panel drawn up to conduct the interview.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

Is it not a little unrealistic of the Minister to suggest that a selection panel appointed by the Home Secretary would take him to judicial review, saying that he had behaved unreasonably? Could not provision be made for the Home Secretary to explain his decision if it were different from the recommendation of his own selection panel?

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

Like me, the hon. Gentleman is a lawyer and he knows full well that a person who has a locus in a case may be able to challenge the Secretary of State's decision. That need not be done by the board.

The hon. Gentleman's view may not be without foundation. A board appointed by the Home Office and the Secretary of State is probably unlikely to take the Secretary of State to court. If we look back into the realms of administrative law, we may find that that has happened. However, a challenge is more likely to be made by someone who is not appointed. There may be others who, for a particular reason, might also want to make a challenge.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I do not wish to criticise the Minister for this, but he might be short-circuiting his own argument. He refers to Wednesbury unreasonableness, but our debates can now be examined in the light of the Pepper v. Hart ruling. Those of us who are lawyers, such as my hon. Friend the Member for Hertsmere (Mr. Clappison) and myself, may understand the concept of Wednesbury unreasonableness, but my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and my hon. Friends the Members for West Chelmsford (Mr. Burns) and for Uxbridge (Mr. Randall) will not be familiar with it. The Minister should explain the concept, not least for those outside who take a great interest in these procedures.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Yes, and for the record. The Minister should explain exactly what he is talking about. I understand him, but I am not sure that those reading his words will.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

As the hon. Gentleman will know, Wednesbury unreasonableness would refer to the Secretary of State making a totally unreasonable or crackers decision. He is not entitled to do that, or make a decision that is so arbitrary that it is contrary to the weight of all the evidence before him. To that extent, as I said to the right hon. Member for Bromley and Chislehurst—as a former Minister, he is probably aware of this legal issue—there are controls on the way in which a Secretary of State would have to respond to a decision on the appointment of a panel and on the recommendations that come from that panel.

I also make it clear to the hon. Member for Surrey Heath that the Pepper v. Hart ruling is relevant only to cases in which there is ambiguity. I hope that the drafting of parliamentary draftsmen does not give rise to a level ambiguity that would cause the ministerial statements that are covered by Pepper v. Hart to be dragged into the argument.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I heard my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) criticise the way in which a Bill that we considered earlier this week had been drafted. I do not want to return to that argument because you would rule me out of order if I did, Mr. Deputy Speaker, but I think that the Minister is being a little complacent in suggesting that parliamentary draftsmen could never produce anything that was ambiguous. Conservative Members are concerned about this issue because the current Home Secretary frequently gets involved in decisions that we would regard as crackers—to use the Minister's own word. For example, the Home Secretary got into terrible trouble yesterday for calling for a British football team. Most of the British population thought that idea was crackers.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

If I followed the hon. Gentleman's example and discussed a British football team I would soon be ruled out of order, so I shall not do that.

Rulings such as Pepper v. Hart were made because there is, on occasion, ambiguity in legislation. We all understand that. I was dealing with an issue raised by the right hon. Member for Bromley and Chislehurst who asked me to clarify the issue of recommendation. I have sought to do that by setting out how I interpret that provision.

4.45 pm

The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) expressed some general concerns about the Bill. I understand them but I shall not go down that route, because this is a specific amendment. The hon. Gentleman referred to the number of Home Office Bills of which this is one. This is a modernising Bill, and modernising our criminal justice system is a substantial process. We inherited a system that was very old-fashioned, and we have had many debates with the forces of reaction who have opposed some of the changes that we have made. Perhaps that is a necessary process.

The appointment of the chief probation officer is important and almost unique. In many ways, the service is unique. The position is clear to us. The board is responsible for service delivery, and the chief officer is a member of the board and he has executive responsibility for the delivery of the service. The Secretary of State will appoint the chief officer, who will help to make board policy. If there is a dispute, the Secretary of State can direct the whole board. That is how we shall deal with conflicts of interest and conflicts of policy.

The membership of the board is a straightforward issue. It is intended that it will be able to make reasonable and straightforward decisions about the people who are selected. Selection will not just take place across the whole country, because there will be local boards, but the main board will include a national director designate, the chairmen designate of each area who are to be appointed, an independent diversity adviser and an independent assessor. Such people are likely to be on it.

The hon. Member for Hertsmere asked me about the judge who will be appointed by the Lord Chancellor. The judge is there by statute and reflects the current position on appointments. On the hon. Gentleman's point about magistrates, we intend that regulations will provide for a certain proportion of magistrates to be involved in the process of appointment and selection. I hope that that deals with that point.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

If the Home Secretary overrules the selection panel and appoints someone as a chief officer of probation whom it has not recommended, that may affect people's confidence in the appointment. Under what circumstances might the Home Secretary exercise that power to overrule the recommendation?

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I have said a fair amount about that and have followed the route laid out by the right hon. Member for Bromley and Chislehurst. The Secretary of State is likely to accept a recommendation unless he has good reason not to. That would be the normal process, as the right hon. Gentleman said. I cannot take the issue further than that.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

Yes, but I have been on my feet for some time and I am anxious to make progress after I have given way.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister is aware that we are not under any great time pressure, as this debate is one of the few in national guillotine week that is not guillotined.

On appointments and the choice of lay magistrates, which was one of the most important points raised by my hon. Friend the Member for Hertsmere, does the Minister accept that it is of huge concern to the Magistrates Association and its members and to the Association of Magisterial Offices? There is a strong belief, which we have articulated in debates on this Bill and on many other occasions, that the Government are constantly downgrading the role of lay magistrates. Magistrates, their clerks and our constituents are very concerned about that and we want to ensure that magistrates have a proper role. The selection of magistrates is vital.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I hear what the hon. Gentleman says and no doubt we will bear those concerns in mind.

The hon. Member for Hertsmere complained about a top-down process. We are creating a modern national probation service. The hon. Gentleman might have a different idea about how we should do that, but we are making our approach clear, whether or not he agrees with it. I do not accept the description of that process as top-down. We are trying to create a service that will better deliver the quality assurance that the public need on the ability of the service to reduce reoffending. That is the key test and the basis on which the public will judge the reforms. We want to ensure that the national service will provide consistent standards and adherence to offender programmes, which we hope will be proved to work. There is a wide disparity in the enforcement of sentences, as demonstrated by the audits undertaken by the Association of Chief Probation Officers. We need to deal with such issues.

The hon. Gentleman said that many of the same people will be in the service in future, and that may well be the case. However, as he also said, it is important that cultures change. He is right to say that the culture in the probation service has been changing for the better—and very much so. That process will continue and be enhanced by our reforms. It will give greater focus to the work that is under way and also deal with the disparities and differences between areas, some of which are very good and some of which are less so. The changes can raise the general standard of probation service delivery.

The hon. Gentleman asked who will serve on the selection panels. I have identified some members, but we must bear it in mind that the Nolan procedures are part of the general process of making Government appointments. The aim is not just to appoint the great and the good who arise out of nowhere, but to follow a more open and considered process, as set out by Nolan. As for being guided by the judge, I am sure that members of the selection panel will give appropriate weight to the judge's opinion, but it is not their role to decide legal issues. The judge will be able to reflect an awareness of the way in which the courts operate, but we are concerned about the selection of someone who can fulfil the role of an executive running a local probation service. The opinions of people who have a more appropriate understanding of how to make appointments will also be given due and appropriate weight.

The right hon. Member for Bromley and Chislehurst referred to paragraph 2(4) of schedule 1—I misunderstood him at first and thought that he was referring to paragraph 3(4). He is right about appointments, but we shall make regulations, although the Bill says only that we may do so. I am not going to give him an undertaking to that effect, but that is our intention.

I am being advised that the selection panels will not always include a judge. To make the position clear for the hon. Member for Hertsmere, sometimes magistrates will be on them.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am grateful to the Minister for correcting his earlier answer, and I realise that he is receiving messages. I want to be clear whether, in order that all hon. Members may be aware of who sits on the panels, the Minister is prepared to undertake today regularly to put details of membership in the Library. There has been quite a lot of debate on that point. My right hon. Friend the Member for Bromley and Chislehurst and my hon. Friend the Member for Hertsmere and I think that the matter, which was pursued in Committee, is important. I hope that our asking the Minister to reassure us that information on appointments will be placed in the Library on a continuing basis will not be too great a burden on the taxpayer.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The appointment of anyone to any panel or organisation will be subject to freedom of information legislation.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

That is not so under freedom of information legislation. Under the Act, the probation service, like any public authority, will be obliged to have a system for ensuring the publication of information; it will have to have mechanisms for that. The sort of information that will be provided will be considered under that legislation in the normal way.

Public authorities will probably make much of the information available on the internet. It would no doubt be possible to access the internet from the Library. The hon. Gentleman asked whether information on membership would always be available. I am saying that if such national probation service information is available under the freedom of information legislation, it will be accessible. I do not know whether a piece of paper needs always to be put in the Library. That would be operating in an era in which the hon. Gentleman and I grew up. That era has gone; information can now be accessed differently.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister is talking about provisions in the Freedom of Information Bill—or Act, as it will become. Neither a Labour Freedom of Information Bill—or, as it was perhaps more accurately called in debate earlier in the week, the Freedom from Information Bill—nor the internet is a substitute for the responsibilities of Her Majesty's Government to this House and its Members.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I hear my right hon. Friend pointing out that it is not sufficient for all hon. Members that information is accessible on the internet. I ask the Minister specifically to ensure that details of membership of selection panels, which have been a matter of party political controversy, will be placed in the Library. That is the undertaking that I am looking for because a number of my right hon. and hon. Friends are not persuaded by new Labour's obsession with the internet as a substitute for everything. We think it is important that the Government abide by their responsibilities to Parliament, which Ministers of this Government have so often forgotten.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The hon. Gentleman is much too curmudgeonly. I was attempting to help him by saying that not only is it likely that information will be available, but that any member of the public should be able to access it. I shall go further and remind him that, as a Member of Parliament, he has right of access to information about anything that the Government do, subject to all the usual caveats about security and so forth. No doubt, he makes use of the parliamentary questions procedure from day to day. There is no reason why, in relation to the public interest, information on the selection panel for the probation service could not be placed in the House of Commons Library. However, some people might have a less than charitable interest in the probation service and those who appoint its members in particular localities. I am sure that that information could be made available to Members of Parliament and I suspect that it would be available to any member of the public. I need more time to consider the hon. Gentleman's concern, but I undertake to write to him and send a copy of the letter to the right hon. Member for Bromley and Chislehurst. That should provide the hon. Gentleman with the reassurance that he wants.

5 pm

I shall now deal with the matter raised by the right hon. Member for Bromley and Chislehurst, who said that it looks as though the selection procedures will cost a lot of money and that, of course, money is no object to the Government. I am sure that he realises that the public finances were in a mess when we inherited them from the previous Government. We are now sorting them out and are dealing with what was a serious problem for the previous Government. I agree with the right hon. Gentleman about that, but would not go so far as to say that money is no object. Certainly, however, the public finances are now in a better state, and I am grateful to the right hon. Gentleman for giving me the chance to make that point.

Lords amendment agreed to.

Lords amendment: No. 135, in schedule 1, in page 48, line 18, at end insert

("(though they may manage it)")

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I beg to move, That this House agrees with the Lords in their amendment in lieu of Lords amendment No. 135.

The amendment makes it clear that local probation boards will manage land even though they cannot own it. During the passage of the Bill, there were many discussions here and in another place about who should manage the land and the buildings that the probation service will occupy. The other place tabled an amendment to enable local boards to own and manage land with the approval of the Secretary of State. The Government were reluctant to go down that route, as we believe that all land occupied by the probation service should be owned centrally.

Local boards should not spend their time discussing whether they wish to buy, sell and administer land. Instead, they ought to discuss how to prevent reoffending and protect the public. We had a certain view about how the boards should spend their time, but have listened carefully to the debate and have always made it clear that those occupying certain premises should be responsible for their day-to-day management. The amendment that the Lords accepted in lieu of their original amendment makes that clear, and is consistent with the position that the House has taken all along. I commend the amendment to the House.

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

I accept the Minister's point about buildings, but will he explain more about the land that is involved and the purpose for which it is used?

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The probation service has land for offices and the courses that it runs. If it had the resources, it might feel that it could purchase land on which it could run a scheme. For example, it might want to purchase garage land on which it could run training courses. Alternatively, it might want land on which to build classroom accommodation. Various possibilities, therefore, could result from the probation service wanting to engage in the ownership and management of land.

We were reluctant that boards should become too involved in that process. I do not think that other parties would disagree that the prime objective of the National Probation Service is to prevent reoffending. That should be the focus of boards' discussion.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

Do any of the current probation committees hold land in the sense in which that term is used in the Bill? If so, will they be required by the Bill to divest themselves of that land?

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I am afraid that my knowledge of the extent of the ownership of land by the various local probation boards is limited. Officials are nodding to indicate that there is some ownership. As I said, we intend boards to spend their time not managing or owning land, but preventing reoffending. In future, the probation service will ensure that it deals with what constituents of the hon. Member for Hertsmere (Mr. Clappison) and my own constituents in North Warwickshire want it to tackle.

People want the service to prevent reoffending. I would be surprised if the hon. Member for Hertsmere were approached by constituents who said that they wanted the board of their local probation service to spend its time managing land. That would apply whether or not it owned the land, although I suspect that the probation service does not own much land and I am not aware of any particular examples of such ownership. However, I do not want to suggest to the hon. Gentleman that there are no instances in which a current local board owns some land, as I suspect that somebody somewhere might well have entered into an agreement for the purchase of land.

The hon. Member for Hertsmere asked what would happen in respect of such ownership. The source of the resources for the land and the circumstances under which it was owned would have to be examined. The hon. Gentleman can work through the legal points, just as I can. I suspect that, in a number of cases, resources will have been provided by a local county council. In such circumstances, the land would be likely to revert to those who had paid for it. However, that will depend on the particular local circumstances that apply. Those are broad legal principles and I am sure that the hon. Gentleman can understand them.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I was attempting to finish, but I shall give way once more.

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

Unlike the hon. Gentleman, I am not a lawyer, so I should like to clear up a point that is causing me further confusion. Paragraph 13(1) of schedule 1 states that a local board may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions. Paragraph 13(2) states: That includes, in particular— (a) holding property. The Lords amendment would, of course, add management of land to that provision. I understand that, but paragraph 13(3) states: But a local board— (a) may not hold land. That seems to contradict paragraph (2).

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

Property can be owned for a period, as it will not necessarily be land. It can vary. If I remember rightly, land is defined in the Law of Property Act 1925. As I have repeatedly said, the Government aim to ensure that the local boards do not spend a lot of their time managing land. Of course, they will hold various sorts of property. Substantial evidence, supported by the national conditions survey of probation accommodation, suggests that probation land is generally not well managed. For example, there is high overcapacity in accommodation across the current probation estate, a large part of which is deemed unsuitable for present or future purposes. That applies to as much as 30 per cent. of the estate. There is also significant over-staffing on estate management. According to the national conditions survey of probation accommodation, the level of over-staffing could be as much as 75 per cent. There are inefficiencies in the use of resources across the estate. There is a significant number of undocumented occupations and approximately £;30 million is required to bring the estate up to standard. In its present state, the property—that which is occupied, and, in a small number of cases, owned by the probation service—is probably unattractive for the private finance initiative. The aim is to ensure that that is dealt with on a much more centralised basis or that property should revert to those who previously owned it so that the probation service can focus on those matters with which the hon. Gentleman's constituents and mine want it to deal.

References to property can mean anything from a paperclip and a pencil, but land usually means land with buildings. A person may lease a building but not necessarily own the freehold of the land on which it rests. That is an important distinction. The main aim of centralising ownership and management of the probation estate is to allow accounting responsibility to be placed squarely where it should be, which is on the Government. As a result, there will be better control of investment, procurement and development, thus making best use of the probation service's assets. It will be part of the wider civil estate and derive benefits from that. Cost savings will be achieved as a result of economies of scale and rationalisation, perhaps involving the sharing of accommodation where appropriate. There will also be greater effectiveness in the delivery of building and management services, which can benefit the probation service and other public sector organisations.

I repeat that the objective is to ensure that the new boards and service managers concentrate on delivery of their core functions and are not distracted by matters relating to real estate.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The Minister makes the argument well, but does the Secretary of State for Health have the power to direct health authorities or trusts to dispose of property to streamline the estate, and does the Home Secretary have the power to direct police authorities to get rid of property in order to achieve a more streamlined result and to save money? I do not think they do, and, if they do not, there is no logical reason why the probation service should have such a power and no local responsibility.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I have just set out why we need more centralised control. There is a serious problem with the present quality of accommodation. There is overcapacity and some dilapidation. We need to be able to benefit from economies of scale, so we take the view that the probation service should be run differently. Whether the NHS is run in the same way and whether the Secretary of State has a particular power is completely irrelevant. We seek to deal with the matter in a sensible and straightforward way to ensure that taxpayers, who put so many resources into the probation service, obtain the value for money that they deserve. The National Probation Service requires a measure of central control in the way in which its property and land is administered, so that the boards can concentrate on what we want them to do.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

When the Minister said in reply to the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) that the matter was perfectly straightforward, he was a little wide of the mark. My right hon. and hon. Friends and the hon. Gentleman, by their careful and skilful probing, have revealed how opaque is the Minister's thinking. Indeed, they hit on the very grave concern that several Opposition Members expressed in Committee. The issue arose in the first place because, during our probing in Committee, it was made clear that those few words—which are, on the surface, apparently innocuous—reveal the Government's overall strategy towards Home Office matters and many others. They want to centralise and have all the control themselves.

5.15 pm

In particular, they want to grab all control and ownership of land. I and many other hon. Members come across exactly the same issue in our constituencies all the time. The Treasury, with its grasping hands, is keen to seize ownership of land and control it centrally so that it can be sold off. That is part of the Government's cynical attempt to raise funds and to build up their war chest.

Photo of Steve Pound Steve Pound Labour, Ealing North

Crikey, they've rumbled us!

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The hon. Member for Ealing, North (Mr. Pound), a wise observer of his party and, in particular, of the Treasury Bench, points out, from a sedentary position, that I have rumbled them. We have rumbled the Government; we are making an entirely serious point.

My right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), my hon. Friends the Members for Hertsmere (Mr. Clappison) and for West Chelmsford (Mr. Burns) and others are aware that, with regard to Ministry of Defence land, for example, there has been a programme, since the Government came to power, of sales, undoubtedly to the detriment of our armed forces, because the Chancellor of the Exchequer wishes to build up a war chest. Mr. Deputy Speaker, you would call me to order if I spent too long developing my thesis with regard to other Departments. We are concerned with the Home Office.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

On these provisions, does my hon. Friend share the sneaking feeling, which I get when the Minister speaks about overcapacity, that we are being softened up? Is it not more often the case that probation officers are crying out for accommodation in which to put young people who are often in trouble?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

That involves sell-offs and redundancies.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

As my right hon. Friend rightly says, that involves sell-offs and redundancies. The Government's approach is a cynical ploy.

The Minister's increasingly desperate attempt to reconcile the obviously irreconcilable text that was wisely spotted by my hon. Friend the Member for West Chelmsford simply showed that it is impossible to justify such incredibly sloppy drafting. The Government are determined not to allow any local ownership of land because they want to keep control so that, as soon as the Chancellor wants more ready cash, the land can be flogged off. That would be to the detriment of local probation services and of offenders whom the probation service is trying to reform.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The hon. Gentleman's comments are becoming increasingly bizarre. Is he really suggesting that when there is clear evidence of overcapacity and of taxpayers not getting value for money, the Government should not make efforts to ensure that taxpayers get value for money, and that the resources saved should not be directed to programmes to prevent reoffending? Is it Conservative party policy to ensure that taxpayers do not get value for money and that money goes into buildings rather than being used to ensure that criminals do not reoffend? That would be bizarre.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister has got to be terribly careful. He was not listening to what I said. We do not—we never would—accept his word that there is overcapacity. My right hon. Friend the Member for Bromley and Chislehurst and my hon. Friends the Members for Hertsmere and for West Chelmsford pointed out that all we have in this context is the Minister's claim that there is overcapacity, which we do not accept. My county probation service tells me that it is constantly strapped for cash, especially in the shire counties of the south-east, which my hon. Friends and I represent. The probation service has been strapped for cash because the Government deliberately targeted funding at their friends in the north and the midlands, and in Scotland and Wales. They have undoubtedly left all the authorities in the shire counties, including the probation service, short of money to do the job they are supposed to do.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I regret that the hon. Gentleman feels that he must make a personal slight, and I am sure that on reflection he will realise that it is inappropriate. I said in my initial statement on this amendment that the national conditions survey of probation accommodation had identified a 16.8 per cent. overcapacity. Perhaps the hon. Gentleman will now feel that it is appropriate to withdraw his personal comment about me, and accept that there is other evidence.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I hear what the Minister says, but I am afraid that we do not accept at face value a survey that states that there is overcapacity. In our democracy, we have such debates to test whether the Government's statistics are correct. During the 18 years for which we were in government, Labour Opposition spokesmen constantly attacked our statistics and my right hon. and hon. Friends on the Conservative Government Front Bench. They would not accept our phrases and words. I am not attacking the Minister in his personal capacity, but specifically and directly in his ministerial capacity. We do not accept what he says about overcapacity, and all my right hon. and hon. Friends from shire counties know the reality. The Government are deliberately penalising our authorities over their probation services, as they do over everything else.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

I think that I can help my hon. Friend. Does he recollect a time in the previous Parliament when the present Prime Minister was the shadow Home Secretary and complained about a shortage of accommodation for young people in trouble? He called in particular for the creation of more secure accommodation places, without delay, to use his words.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I advise the House to come back to the terms of the amendment, rather than have a general debate.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I accept your ruling, Mr. Deputy Speaker, but this amendment in lieu relates to the question of land. My hon. Friend the Member for Hertsmere rightly pointed out that during the previous Parliament, the present Prime Minister, when he was shadow Home Secretary, attacked the Conservative Government because of a shortage of land and buildings specifically for the probation service, including facilities for looking after young offenders. I think that I can appropriately reply to my hon. Friend without going out of order, by saying that he has a good point.

It is important to recognise that we are challenging the Government on their amendment in lieu, and particularly its sloppy and contradictory drafting, because we do not accept their statistics. We do not think that in three and a half years of a Labour Government we have gone from the shortage that the Prime Minister previously attacked to an overcapacity.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. The hon. Gentleman prefaced his remarks by saying that he accepted my ruling, then he ignored it. I do not admire that, and I ask him to respect the Chair's rulings. The issue before us concerns ownership and management.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am grateful, Mr. Deputy Speaker, and I shall move on. I shall return to the important point that my hon. Friend the Member for West Chelmsford raised in an intervention.

The wording of the amendment in lieu is contradictory. The schedule that the Government propose to amend entails a contradiction in terms. We are back to the same issues that we discussed on another Bill during national guillotine week, when my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) pointed out that, under pressure, the Government and those who advise them have resorted to desperation tactics and have produced self-contradictory amendments. We have a right to debate them and to challenge the drafting, especially when the terms of the amendments seem, on the face of it, to be contradictory.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I am not disputing the hon. Gentleman's right, I am merely urging him to get on with it.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am endeavouring to do so, and I shall bring my remarks to a close in a moment.

My right hon. and hon. Friends who have intervened on the Minister have revealed the severe problems and contradictions in the Government's choice of wording. We think that there is a weakness. This issue has not suddenly emerged today: it was explored at some length in Committee—I took the Bill through its Committee stage. The Government will recognise that this matter has been debated at some length, because there is a serious issue about whether local autonomy should prevail. We have always felt that local probation services have a serious duty to perform, and that their responsibilities should not be unduly restricted, and that includes their ability to own and manage land.

I think that I speak for probation services the length and breadth of the country. I know that I have raised the concerns of my own county probation service, and my right hon. and hon. Friends may want to pursue the issue further on behalf of their probation services.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I could not have predicted that what might be described as the "last knockings" of our debate—although I do not wish to be disparaging about the part of the Bill that we are discussing—would generate such heat and drama. Similarly, had I consulted the week's programme, little would I have thought that the serried ranks of all the parties would be present for a major set-piece debate on what is clearly a central issue. In fact, to be honest, I do not think it is that; but it raises one important principle, and one supplementary drafting point.

Like the hon. Member for Surrey Heath (Mr. Hawkins), I think that, ultimately, the draftsmen missed a trick. I am not making a huge point, but let us look at the schedule. The paragraph dealing with the ancillary powers of the probation service provides for directions given by the Secretary of State and then states that a local board may do anything which appears to it to be necessary or expedient —including holding property, and so on. However, the paragraph goes on to say that the board "may not hold land". Surely if the drafting had produced the words "may hold property but not land", we would have got it right in the first place—but I suspect that the Bill will not be amended perfectly before it becomes law, and I doubt that it is the first Bill that will have been passed without being perfectly drafted.

Let me now deal with my substantive point, and draw attention to one example and one principle. Around the corner from my constituency office is a building run by the probation service. As it happens, I do not know who owns the building—had I realised that this would be such a big debate, I would have walked around the corner and asked—but it has been in probation service use for as long as I have been a Member of Parliament and probably before, and is well used. It is not a residential building; it is a building for day use—for training, and so forth.

Let us imagine that the probation service rents that building from another owner, in either the private or the public sector. Let us imagine that there comes a time when the owner says, "I am going to sell the building. Either you buy it from me, or I will sell it to someone else. You can have the freehold, but I am afraid that if you do not take it, I will not provide another lease on it; I will get rid of it."

In that event, the local board would have no power to buy the building. It would be subject to the central control that the Minister says is necessary so that the estate can be rationalised. The local board may not persuade the probation service of the intrinsic value of the building in the sense that, in the board's view, it is in a good location, has been fitted out well or has worked well for the client base. Ultimately, the board may have to say to the owner, "We are sorry, but we cannot buy the building"—whereupon the owner will say, "I am sorry, but in that case I will sell it, because I am not willing to give you a further lease". I feel that the "strict central control" argument may often militate against the interest of the local service.

I am not in a position to dispute the figures given by the Minister relating to the survey's findings in regard to overcapacity, but I am sure that the same argument could be advanced in respect of the national health service. The NHS certainly has a great deal of land that is not being fully used. The argument could be advanced in respect of the police and education, and I am sure that it could still be advanced in respect of public highways, where a lot of space that was not being fully used has been acquired for purposes of road-building and the like. Although the railways are no longer in the public sector, it used to be possible to advance the argument in that context, because huge amounts of land were not being used. Anyway, in public policy terms, the argument could be relevant in many areas.

All that I say to the Government is this: it strikes me that we are removing a flexibility that may be to the advantage of the local services. The fact is that what may work in, say, Surrey, or in London, may not work in Durham, Cleveland, Powys or Gwent.

The whole idea of having a local service is that it is a service intended to respond to local needs. In that sense, it is different from the prison service. The Prison Service does not work on the basis that everyone goes to prison near where they live. The Parliamentary Secretary, Privy Council Office, who is present now—probably waiting for the next debate—has a prison in his county town, the city of Nottingham. He will know that not everyone in Nottingham prison is a Nottinghamshire resident. The basis on which the Prison Service works is that, depending on people's prison needs, they may be sent to a high-security prison at the other end of the country, or they may be imprisoned locally.

5.30 pm

It does not work like that in the probation service. People do not suddenly say, "You're on probation. We're going to send you to Westmorland, although you live on the Walworth road." Nor do they say in the constituency of my hon. Friend the Member for Somerton and Frome (Mr. Heath), "Here you are in Somerton, but we've decided that you'll report every Saturday morning in Surrey." It is a local service, and there is a very strong argument that there should be flexibility in a local probation service. It seems unnecessary to restrict that.

I end by linking together the two points. We could always provide the Secretary of State with a reserve power to direct, and to intervene when a continuing dispute between a local board and the national service cannot be resolved. Therefore, it is unnecessary to bar the local probation service from owning land.

The new Lords amendment seems less satisfactory, and it would perhaps be better to stick to the original one. I wonder whether it might not be better to ask the House to vote on the matter—so that the serried ranks of hon. Members waiting to vote can do so, the Government can be overthrown, and we can have a little more excitement before Parliament rises.

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

I do not wish to detain the House for long—not only because I do not wish to test your patience, Mr. Deputy Speaker, but because of an earlier intervention by the Minister in which he sought to be helpful in allaying my concerns. However—this is not a criticism of him—as I told him in an earlier intervention, I am not a lawyer and do not have a lawyer's mind, and I am still confused and concerned about the drafting of paragraph 13 of schedule 1, which seems to be contradictory. If I explain in some detail my concern and confusion, perhaps the Minister, with his razor-sharp lawyer's mind, will be able to assure a layman that the Government's intentions are quite logical.

As I understand it, if the Government accept the Lords amendment in lieu, schedule 1, paragraph 13(3)(a) will provide: But a local board— (a) may not hold land though they may manage it.

To my simple mind, that is completely obvious and understandable. Then, paragraph 13(1) quite clearly states: a local board may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions. The confusion for me arises when one goes to schedule 1 paragraph 13(2)(a), which states: That includes, in particular— (a) holding property.

Earlier, the Minister said—I think that this is commonly accepted—that the terms "property" and "land" are synonymous. Some people may feel that property is the actual building on land, but it is the land and the building. Some property is just land, whereas other property is land with buildings on it.

If that is a correct analysis of the word "property", surely paragraph 13(2)(a) is contradicted by 13(3)(a). The paragraph seems to be saying both that the board may hold property and that a local board may not hold land. I just cannot understand the logic of that.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

It might be helpful if I deal with the point now rather than in my reply. "Property" is a broad term that includes both land and things from computers to pencils. The provision is not inconsistent. It says that all types of property may be held, but land may not be held. That is the type of property that the board may not hold. The board may hold other types of property, from pencils to computers. Although it may also hold a lease, it cannot own freehold. Thus the board will not be in the business of dealing with the purchase and sale of freehold land or long leases involving land. Additionally, it may well be renting premises. So, although it will need to manage land, it cannot own it.

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

I am grateful to the Minister, but I am not altogether wiser. I am trying to think of the implications of what he has just said. I understood him to say that those involved may manage property and land, but may not own it. I understand that, but why does the Bill say that they may hold property but not land? I do not see the difference. Is the word "hold" legalese for own, rather than manage? If so, I will finally understand the point.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

"Hold" will mean owning land or owning a right in land. The difficulty, as lawyers will understand, is that land law is essentially a legal fiction or structure. It is a creation of a way of ownership that is based on an understanding of the difference between legal ownership and equitable ownership. There are different ways in which land may be owned: some legal, some equitable. If I tried to explain it, I would confuse the hon. Gentleman even more, which I do not want to do.

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

The Minister is absolutely right. We will not move the debate forward if I pursue this narrow point. This is a badly drafted proposal, unless one is a lawyer. I hope that it will not provide a rich seam for lawyers to benefit from in future years.

The Minister has said that the probation service cannot own land. It can have a lease or manage land, but cannot own it. Does that mean that the land that the probation service currently owns will have to be divested so as to comply with the Bill?

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

The Minister helpfully nods; that raises a number of questions.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

The Minister's justification for his proposal is that owning land would distract the probation service. Will not the probation boards now have the distraction of selling land?

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

My hon. Friend makes a telling point. The Minister said that the probation service can manage properties but cannot own them. Surely that will be a distraction in its own right.

I wish to return to the narrow point about the selling off of properties and land currently owned by the probation service, which, once the Bill comes into force, will be illegal for them to hold. I assume—this thought has only just entered my head on the hoof, so to speak—that there will be provisions in the Bill for a timetable for the probation service to divest itself of the land, so that it would not, for example, be acting illegally by still owning land if the Bill were to become the law of the land a week today. I am sure that the Government have realised that there will have to be a time lag to avoid such potential embarrassment and self-inflicted damage.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Might not it assist those who report our proceedings if my hon. Friend were to reflect further on the phrase that he employed when he said that something had entered his head on the hoof?

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

I am grateful to my hon. Friend for that helpful and pertinent intervention. However, I do not want to test your patience, Madam Deputy Speaker, so I shall return to the Bill.

I am not quite sure why selling off the land is so necessary as part and parcel of the schedule. I do not see an absolute need for the service not to own land. If it can manage its own property and land, why cannot it own them? From a longterm, Treasury point of view—the Government make so many criticisms of short-termism that one would think that they would welcome a long-term view—land and property prices generally appreciate in value. The probation service, as the freeholder of the land, will lose an asset that would otherwise appreciate in value, if it has to sell it.

What will be the mechanisms for selling off the land? The probation service might, for example, operate in a town in which it owned facilities, properties and land ideal for its uses. The property might even be purpose built and therefore unattractive for land developers to buy, demolish and redevelop. Why should the probation service go through the agony of the fruitless exercise of selling off its property under the provisions of the schedule, then have to look elsewhere to rent or acquire

similar property or land in order to carry out its duties? That would be a false economy, and rather—1 am trying to think of a parliamentary term—foolish. Perhaps the Minister would like to put me out of my agony by explaining this now.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The hon. Gentleman makes some interesting points. However, if we were proposing to do what he suggests, he would be right—it would be foolish. We are not expecting the probation service to sell the land, then try to buy it back. Under clause 19, an order may be made to vest the land in the Home Secretary, who would then be able to administer it centrally. The offices that the local probation services currently occupy would continue to be their offices. The services would just not have the job of owning them—that would be done centrally by the Crown estate.

Photo of Simon Burns Simon Burns Conservative, West Chelmsford

The matter is becoming clearer. The Minister is saying that, under the clause, the probation service will not be allowed to own the land or property. However, rather than being sold off to the private sector to make a profit, the land will be shuffled from the probation service to the Home Secretary. The ownership will then be transferred to the Home Office or to the Government body with responsibility for buildings.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

A further point is that some land may be sold off because, if the number of local organisations reduces from 20 to eight, there will be some overcapacity by reason of that change. Therefore, there may be sales at some point, but they will be done centrally.

Photo of Simon Burns Simon Burns Conservative, West Chelmsford 5:45 pm, 30th November 2000

Presumably, on that basis, the Minister assumes that the majority of the land and property will go to the Home Office, with only a relatively small proportion being sold off to the private sector.

I wonder, on reflection, whether it is all worth it. I am unaware that the probation service has encountered the worry and concern of managing its estate, among the many pressures on its time, duties and functions. It seems slightly pointless and a waste of time to shuffle around the ownership of property and land. I suppose that it is the Government's desire for modernisation that leads them to tidy up the system and concentrate the ownership at the centre, rather than around the country. However, as the Minister said about another aspect of this debate, that is Government policy. We may not like it, but they are perfectly entitled to do so. Whether it works is another matter.

Presumably, there will be sufficient staff and trained people to ensure that the land and property that is shuffled to the central Government estate is managed properly. Does the Minister anticipate conflict between the probation service and the management at the centre? Are there proper procedures by which to ensure a smooth transition and the effective and smooth management of the estate, without leading to friction and, ironically, distraction? If the probation service is no longer directly responsible for its estate, any conflict or problem could become extremely distracting.

I understand that the Minister does not want to sort out all my points as we go along, but I would be grateful if he could enlighten us in his winding-up speech.

Photo of David Heath David Heath Shadow Spokesperson (Environment, Food and Rural Affairs)

I rise to make a very short speech, Madam Deputy Speaker, as I am sure you will be pleased to hear. I simply want to question the Minister on one point. He referred to the reversion of land at present held by the probation service to a local authority—a county council or metropolitan authority. I am not clear what mechanism would apply for that purpose. I looked carefully at clauses 18 and 19, which contain a mechanism whereby land that is at present vested within the probation service can be taken into the ownership of the Crown Estate Commissioners or the Home Office. That extends further in that land owned by a local authority can, by the same mechanism, be moved directly to the Home Office.

I am not clear about land that has been acquired by a probation committee. Such a committee is not cognate with the local authority; as I know to my cost, having been leader of Somerset county council, it is a precepting authority. There seemed to be an ever-increasing bill from the probation service which the local authority was powerless to amend and it was simply a question of paying whatever the probation committee decided. That money, whether it was revenue or capital, was then entirely within the province of the probation committee, to spend as it saw fit. I am not aware that land that was then owned by the probation committee was retained in the ownership of the local authority. Therefore, how could land that was owned by the probation committee revert to a local authority that had never owned it? If land had been acquired for the specific purposes of such a committee, would the metropolitan authority or county council ever have had any title to enable the land to revert to its ownership? If that were not the case, the Bill would need to provide a specific mechanism. I see no such mechanism.

I see the Minister nodding confidently. I am sure that he will give me a satisfactory answer in his reply.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

The issue before us is whether probation boards, as they will be, will be allowed to own land or merely to manage it. The Minister's explanation of the Government's reasons for pursuing that course, and of why they are reluctant to allow the boards to own land, takes some swallowing. The Government are trying to prevent probation boards from being distracted by the ownership of land. That would seem a strange explanation if it were given in any other walk of life, with any other organisation in the public or the private sector. It is made even more strange by the fact that, under schedule 1(13)(2) the probation boards can hold property other than land, enter into contracts, invest sums and accept gifts. They can do all those things, which are apparently not distractions, but they are not allowed to own their own property—their own land.

My hon. Friend the Member for West Chelmsford (Mr. Burns) made a fair point when he said that, in legal terms, this is a confusing use of the word "property", since property is usually synonymous with land: indeed, the law relating to land is the Law of Property Act 1925. For the purposes of the Bill, however, the word does not apparently have that meaning.

Why are the probation boards not to be allowed to own land? The Minister gave us the real reason when he referred to clause 19 and schedule 3, which make the matter a little clearer. The Minister wants to put in place a scheme whereby the land owned by probation committees will be transferred to him. That is the scheme referred to in clause 19.

Schedule 3 deals with the way in which the scheme will operate, although it does not spell out what is being done. Taken in conjunction with what the Minister has told us about schedule 1, it makes it clear that we are talking simply of grabbing land held by the probation committees—a land grab by the Minister.

Some considerations need to be scrutinised. When the Minister refers to property held by a probation board, what does he mean by the word "held"? What legal interest does that encompass? In response to an intervention by my hon. Friend the Member for West Chelmsford, the Minister said that probation committees would be allowed to lease land but not to own it and that they would not be able to take out a long lease. What sort of lease will they be able to take out under the provisions? We need to know more about the meaning of the word "hold".

Will the Minister tell us how he expects probation committees to deal with their properties when they do not own them? If they do not own the property, will they have to go to the Home Secretary whenever they want to alter it? Will the committees be deterred from investing in their properties? Clearly, they will not want to invest in something that they do not own Will the Minister deal with that? What happens when the Home Secretary decides that he wants to act at variance with the probation board? Whose wishes take priority? Can the Home Secretary simply tell the board that the Government think that there is overcapacity, and that they want to sell the land or do what they like with it? What happens if the probation board takes a different view?

I was surprised to hear the Minister's justification on overcapacity; what he said did not relate to my experience or to that of the Hertfordshire probation service. Members of that service are crying out for additional places for young people in trouble. Sometimes, such young people have had to go into custody because there was not enough space for them in probation hostels. In Hertfordshire, there is tremendous pressure on places owing to the lack of land and property available to the probation service. The Minister tells us that there is overcapacity; that will come as a surprise to many people involved with the criminal justice system.

What if there is a difference between the probation board and the Secretary of State concerning the use of the board's land? Will the Secretary of State simply tell the board what to do? On what basis will the proposed transfer take place? Will there be compensation? Paragraph 3 of the schedule is relevant because it deals with the transfer of ownership that must occur if probation boards are not allowed to own land. What compensation will be paid under that provision?

Under paragraph 2(2) of the schedule, what would happen to a person who might have a legal interest in property or land that is currently owned by a probation committee? For example, what would happen to the legal rights of someone who benefited from an easement or a covenant on such land? Will their rights be transferred away along with the committee's ownership of the land? We need to hear more about that matter from the Minister.

A host of issues lie behind this seemingly innocent, technical amendment. They arise from the Government's reluctance—even hostility—to the idea that probation committees should own their land. I suspect that, in future, probation boards will be put at a legal and commercial disadvantage by this measure; it will affect their operations. Far from the ownership of land causing a distraction, they will suffer from the distraction of not owning land—they will have to manage it and make various arrangements. They will experience a series of distractions because they do not own their land and thus cannot make decisions about their property. A further distraction could be provided by the intervention of the Secretary of State, who might decide to do something else with the land.

Given that the transfer will go ahead, will the Minister tell us how the matter will be dealt with in the Government accounts? Will it be counted as an asset to the Government—as a future windfall? Will it be classed as repayment of debt?

The provision gives rise to many important issues. The Minister will have to say far more; he cannot merely claim that ownership of land by probation committees is a distraction that prevents them from carrying out their functions and suggest, in addition, that there is overcapacity. He must spell out the answer to all the legal questions—as regards probation boards and other people who may have an interest.

6 pm

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

It is proposed to amend paragraph 13(1) of schedule 1, which states: Subject to any directions given by the Secretary of State, a local board may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions. That is a wide discretion.

In that context, we need to refer back to clause 1(2)(c), which lays a responsibility on the service and thus on local boards to provide—among other things—accommodation in approved premises. That is the link with property and gives us the clue as to why we have had to get involved in this matter—or indeed why the Government have had to become involved.

It is interesting that clause 3(2) states: The Secretary of State may make any payment he considers appropriate towards expenditure incurred by any person for any of those purposes. Further, clause 5(1) states: It is a function of a local board … to make arrangements for ensuring that sufficient provision is made for the purposes mentioned in section 1 in respect of this area. So there is a series of interlinking duties and powers, as one would expect in such measures, which sets the scene for the board to make proper provision for the discharge of its responsibilities.

During this brief debate, the Minister has made great play of the onus that he places on local boards to reduce reoffending. Presumably, he will also want to ensure that proper and adequate provision is made for the discharge of local boards' functions right across the policy spectrum. Presumably, anything that might inhibit that would be undesirable and counterproductive. That is the cause of much puzzlement among my hon. Friends and me.

Why has that arbitrary restriction been introduced? I can well understand my hon. Friends' mystification about the fact that the board will be encouraged to hold property, but will be prohibited from holding land. That arbitrary distinction is not only unnecessary, but as my hon. Friends have said, may eventually be counterproductive. Of course the obligation in clause 1(2)(c) to provide accommodation in approved premises suggests that—in layman's terms—property has to be acquired and made available.

I would add in parenthesis that I, too, speak as a non-lawyer. My hon. Friend the Member for West Chelmsford (Mr. Burns) and I have the advantage of not being lawyers and, therefore, we can see things with greater clarity and in broader perspective. I suggest that a problem may well arise with freeholds and leaseholds if a distinction is made between property and buildings on one hand and land per se on the other. It strikes me, as a layman, that an unnecessary difficulty might be introduced if the board sought property without holding or owning the land.

That may or may not be a real distinction—perhaps the Minister will help us—but if I am correct, or even partially correct, such a distinction would introduce an unnecessary complication to the management function of the local boards. I am sure the Minister would be the first to claim or concede that the boards' principal responsibility is to those in their charge to reduce or eliminate reoffending.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

I am not a lawyer either. What will happen if the local people take out a leasehold and share it with other people, who persuade them that they should take out a flying freehold, so that, although they do not own the land, they start to own the freehold? Has my right hon. Friend considered that complication?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Not yet, but my hon. Friend tempts me greatly. He strengthens the point that that apparently and deceptively simple provision will cause several complications, and we have not yet dealt with the amendment.

The Lords amendment suggests that, although the boards may not hold land, they may manage it. That represents yet another complication that is not only unnecessary but positively undesirable. We are in danger of getting boards involved in a complex series of relationships involving property and the holding and management of land.

Why has that unnecessary entanglement been introduced? The Minister has done his best to try to explain why and to satisfy the House about it. He is renowned for his powers of persuasion but, try as he might, he failed to carry the House with him. He spent time on the issue and he brought all his expertise, experience and lawyer's gifts to bear. Still he failed to convince me, and probably my hon. Friends, that we should accept the distinction in paragraph 13(2) and 13(3) of schedule 1 and—what is even worse—the complication introduced by the Lords amendment. In that sense, we are no further forward. In fact, we are more worried than we were before that the local boards, with the great responsibilities that have been laid upon them by this Bill and other legislation, will be deterred from fulfilling that responsibility if they are to adhere to the letter of the requirement.

That raises another serious matter. Will the local boards be required to adhere to the letter of the requirement? From what the Minister said, I got the sense that the requirement need not be implemented in too exact or punctilious a way. My hon. Friend the Member for West Chelmsford (Mr. Burns) then discovered from the Minister that sleight of hand may be involved and that the Secretary of State could end up holding the land instead of the local board. That is a distinction without a difference.

We can start to play games about the notional ownership of the land and consider whether it should be held by the local board or the Secretary of State, but the point has been made that the board would be distracted from its duties if it had the difficulty of holding the land. The local board may have to manage the land, however. Holding the land is deemed to be too complicated or difficult, but managing it is deemed to be perfectly satisfactory. That is completely the wrong way round. I could have understood the provision if it had said that the board may hold the land but must not get involved in its management because that would distract it from its purpose. The Minister is trying to tell us that there is something inherently undesirable in a board's holding the land, but that it is perfectly acceptable for it to manage it.

The provision is all over the place; it is unsatisfactory; it is the wrong way round; it is upside down; and it is any other way that one can think of.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am grateful to my hon. Friend. The hon. Member for Somerton and Frome (Mr. Heath) said that he might have been minded to divide the House on the issue. We are now at the stage at which we shall have to think seriously about whether we are prepared to nod it through. It may be late in the Session, but it is not too late. There is still time for the Minister to give us a further explanation.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

Is my right hon. Friend aware that this is an important subject? The probation service owns land and property throughout the country that is used to accommodate young people who are in trouble. If that land is not available, those young people may have to be put into custody at even greater expense to the taxpayer or left out in the community where they may commit offences against members of the public.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Regrettably, that is entirely possible. I do not want my hon. Friend to misunderstand me. I am not implying that this is a minor matter—quite the opposite. The fact that it is before the House at this stage is a matter for regret rather than rejoicing. It is the type of issue to which we should give full consideration and, so far, we have managed to do that.

The challenge to the Minister is serious. If he is not able to do better than he has heretofore, in his opening remarks and interventions, we may be forced to express our dissatisfaction with the provision by seeking to establish the view of the House in a Division. We have done our best to ask the proper questions. We shall now assess the Minister's reply.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The debate has taken an interesting turn or two. It has gone through a few S-bends and meandered so much that, to some extent, debate on a straightforward and narrowly drafted clause has expanded into a great discussion on who owns what and how it is managed.

Call me a lawyer, but I have to say that the situation is clear. The board's principal responsibility is to prevent and tackle reoffending. We want it to spend its time doing that instead of dealing with the problem and responsibility of owning land. The Bill clearly shows that it can own and manage property, the broad definition of which includes everything from a paperclip to a computer, and which could include land. The Bill excludes ownership of land as such. We accept that the board will need to manage property, which may include the office from which it runs its service.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I shall take one intervention, but this has been a long debate and I want to make substantial progress.

Photo of James Clappison James Clappison Shadow Spokesperson (Treasury)

I hope that the Minister will answer the questions that have been put to him. Can he set the scene for that by telling us what the word "hold" means? What will the probation board be allowed to hold?

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The hon. Gentleman is well aware that "hold" is a term of art that is used in property legislation. It goes back to the Law of Property Act 1925 which refers to the way in which land is held and transferred. If the hon. Gentleman wants a dissertation on the meaning of "hold", he can look at the various legal textbooks; I do not propose to give a lecture on it now. All we are talking about in this context is the ownership of land. We are saying that a board will be able to hold and manage property, which may include paperclips and computers, but not to own long leases or the freehold of property. That is the principle behind what we are doing. We want the board to concentrate on the job in hand, so as to ensure that it deals with issues of reoffending.

The Opposition have always supported the proposition that the board should be able to manage land. They tabled an amendment to that effect in another place. The hon. Member for Hertsmere said that our proposal is a land grab by Ministers. I am surprised that the hon. Gentleman should have made such a silly point. He well knows that the land is owned by the taxpayer and that its benefits will accrue to the taxpayer—if, indeed, there are any.

The hon. Member for West Chelmsford (Mr. Bums) said that the value of land often increases, as do the benefits to the owner. I have two comments to make on that. First, although 1 accept that land usually increases in value, it does not always; indeed, the hon. Gentleman will remember when it decreased under the Conservative Government. Secondly, local authorities all too often held on to land in the hope that it might either be of use or be something that they could sell at a greater profit in some years' time. There should be proper business management of such matters. Decisions made locally will not properly consider the overall interests of the taxpayer. The money to run the probation service—locally or nationally—comes from the taxpayer. It is right that the capital or assets that belong to the service should be well managed to bring the taxpayer value for money. That is what the proposal is all about and what we want to achieve.

On the transfer of land, and in response to the hon. Member for Somerton and Frome (Mr. Heath), most of the land owned by the probation service will revert to the Crown estate—in effect, to the Home Secretary—so it will be controlled and managed nationally. If the land is owned in some way by the local authority—or jointly owned, since there may be all sorts of different relationships and legal obligations that have developed over the years—the individual characteristics under which local arrangements have been arrived at will have to be examined nationally, and perhaps some land will have to go to a county council. However, normally, because 100 per cent. of probation service capital costs have historically taken a national route, whereas 20 per cent. of the service's revenue costs have come from local government, the capital will revert. There may be particular local circumstances, which will have to be considered case by case. I hope that that deals with the hon. Gentleman's point.

6.15 pm

The hon. Member for West Chelmsford asked whether there were provisions for compensation. The answer is yes, there may be local circumstances—perhaps with a county council or otherwise—as a result of which it is decided that the council owns a proportion of the property, and some compensation will have to be paid. I understand that that is set out in schedule 3. Compensation would be paid where—I think that this is the phrase used—it is just to do so.

The issue of drafting legislation has floated around during the debate—and here I enter a defence of parliamentary draftsmen, who are experts at what they do. It takes about five years to qualify as a parliamentary draftsman. The job is difficult and there is all too often a tendency to be overly critical of them. Ministers are responsible for what we put before the House, and we do our best to ensure that we accept that, but, on this occasion, criticism seems to have been aimed in the direction of the parliamentary draftsmen. Many of them have been working in that office for decades. They have highly skilled and technical legal abilities. There are always good reasons for their drafting—at least they certainly believe so. To some extent, it is a pity that they do not have a right of reply to Members of Parliament and perhaps, on occasion, to Ministers.

I shall now deal with another couple of points that were raised. The first is how and when the property will vest nationally to the Crown estate. It will vest on what is called vesting day, following an order under clause 19. The probation service will then become part of the Crown estate and, in effect, all properties will be owned by the Home Office—although probation boards will continue to have an ability to influence local operation and so will describe the requirements for offices and other facilities. The boards will continue to have direct responsibility for management of the property in the area, and will retain responsibility for determining their property needs.

The hon. Member for Hertsmere indicated that there was a shortage of probation hostels. As a Minister in the previous Government, he should assume his share of responsibility for that. As I understand it, overcapacity in the probation service relates primarily to office space and other land. As I have already said, where we are reducing 20 locally based services to eight, there will be some savings to the taxpayer. It is right that those savings revert to the taxpayer and are spent on public services, especially those that reduce reoffending.

The basis of the amendment is to ensure that boards direct their attention to the people's priority of reducing reoffending. That is why it is before the House and that is why I commend it to the House.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

The House will agree with the Minister's final words. We all want to reduce reoffending—and, for that matter, reduce offending in the first place—but the details of the debate are not about that. If the Minister discovers that anything that he has said could be better put, I hope that he will take the opportunity afforded by written answers in the new Session. Perhaps some of the details could be improved. The question of the long leasehold is still unclear to most people who have been following the debate. The Minister said that a short leasehold is all right. However, what happens when a local board asks whether a five-year lease is a short or long leasehold? Is a long lease 15 or 25 years? Some issues may not be clear to local boards.

When invited to do so, the Minister conceded that he is nationalising a lot of property and taking it into central control. That has been noted, but if the Minister is not proposing to table a manuscript amendment to tidy up the details, the House may have to return to the matter in future. The hon. Gentleman has left the situation unclear, with the exception of the central point that, under Labour, land is nationalised. The Conservatives would leave more freedom for local people.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I shall reply to what some may regard as an uncharacteristically trite point from the hon. Member for Worthing, West (Mr. Bottomley). Land that is reverting to the taxpayers' Government was provided by taxpayers.

Photo of Angela Browning Angela Browning Shadow Leader of the House of Commons

On a point of order, Madam Deputy Speaker. Should the Minister not have required leave of the House to return to the Dispatch Box?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

The Minister accepted an intervention. Would he like to continue?

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

I am grateful, Madam Deputy Speaker. I have made my point and we can move on.

Question put, That this House agrees with the Lords in their amendment in lieu of Lords amendment No. 135:—

The House divided: Ayes 275, Noes 116.

Division No. 367][6.21 pm
AYES
Abbott, Ms DianeAustin, John
Adams, Mrs Irene (Paisley N)Bailey, Adrian
Ainger, NickBanks, Tony
Ainsworth, Robert (Cov"try NE)Barnes, Harry
Allen, GrahamBarron, Kevin
Anderson, Donald (Swansea E)Battle, John
Anderson, Janet (Rossendale)Bayley, Hugh
Armstrong, Rt Hon Ms HilaryBeard, Nigel
Atkins, CharlotteBeckett, Rt Hon Mrs Margaret
Benn, Hilary (Leeds C)Galloway, George
Bennett, Andrew FGeorge, Bruce (Walsall S)
Benton, Joe Gerrard, Neil
Berry, RogerGilroy, Mrs Linda
Best, Harold Godman, Dr Norman A
Betts, CliveGodsiff, Roger
Blackman, LizGoggins, paul
Bradley, Keith (Withington)Gordon, Mrs Eileen
Bradshaw, Ben Griffiths, Jane (Reading E)
Brinton, Mrs HelenGriffiths, Nigel (Edinburgh S)
Brown, Rt Hon Nick (Newcastle E)Griffiths, Win (Bridgend)
Brown, Russell (Dumfries)Grogan, John
Browne, DesmondHall, Patrick (Bedford)
Buck, Ms KarenHamilton, Fabian (Leeds NE)
Butler, Mrs ChristineHanson, David
Byers, Rt Hon StephenHealey, John
Caborn, Rt Hon RichardHepburn, Stephen
Campbell, Mrs Anne (C'bridge)Hewitt, Ms Patricia
Campbell-Savours, DaleHill, Keith
Cann, JamieHinchliffe David
Caplin, IvorHodge, Ms Margaret
Casale, RogerHoey, Kate
Caton, MartinHood, Jimmy
Cawsey, IanHoon, Rt Hon Geoffrey
Chapman, Ben (Wirral S)Hope, Phil
Chaytor, DavidHopkins, Kelvin
Clapham, MichaelHowarth, Rt Hon Alan (Newport E)
Clark, Rt Hon Dr David (S Shields)Howarth, George (Knowsley N)
Clark, Dr LyndaHughes, Kevin (Doncaster N)
(Edinburgh Pentlands)Hurst, Alan
Clark, Paul (Gillingham)Hutton, John
Clarke, Charles (Norwich S)Iddon, Dr Brian
Clarke, Rt Hon Tom (Coatbridge)Illsley, Eric
Clelland, DavidJackson, Ms Glenda (Hampstead)
Clwyd, AnnJackson, Helen Hillsborough
Coffey,Ms AnnJamieson, David
Coleman, IainJenkins, Brian
Colman, TonyJohnson,Alan (Hull W & Hessle)
Connarty, MichaelJohnson, Miss Melanie
Cook,Frank (Stockton N)(Welwyn Hatfield)
Cooper, YvetteJohnson, Mrs Fiona (Newark)
Corbyn, JeremyJones, Helen (Warrington N)
Corston, JeanJones, Ms Jenny
Cousins, Jim(Wolverh'ton SW)
Cox, TomJones,Dr Lynne (Selly Oak)
Cranston, RossJones, Martyn (Clwyd S)
Crausby, DavidJowell, Rt Hon Ms Tessa
Cryer, John (Hornchurch)Kaufman,Rt Hon Gerald
Curtis-Thomas, Mrs ClaireKeeble,Ms Sally
Dalyell, TamKeen, Alan (Feltham & Heston)
Darling, Rt Hon AlistairKeen, Ann (Brentford & Isleworth)
Darvill, KeithKemp, Fraser
Davey, Valerie (Bristol W)Khabra, Piara S
Davidson, IanKilfoyle,Peter
Davies, Rt Hon Denzil (Llanelli)King, Andy (Rugby & Kenilworth)
Davies, Geraint (Croydon C)King,Ms Oona (Bethnal Green)
Dean, Mrs JanetLadyman, Dr Stephen
Denham, JohnLammy, David
Dismore, AndrewLaxton, Bob
Dobbin, JimLepper, David
Dobson, Rt Hon FrankLevitt, Tom
Donohoe, Brian HLewis, Ivan (Bury S)
Dowd, JimLewis, Terry (Worsley)
Drown, Ms JuliaLloyd, Tony (Manchester C)
Dunwoody, Mrs GwynethLock, David
Eagle, Angela (Wallasey)Love, Andrew
Eagle, Maria (L'pool Garston)McAvoy, Thomas
Edwards, HuwMcCabe, Steve
Efford, CliveMcCafferty, Ms Chris
Ennis, JeffMcDonagh, Siobhain
Field, Rt Hon FrankMacdonald, Calum
Fitzpatrick, JimMcDonnell, John
Flint, CarolineMcGuire, Mrs Anne
Foster, Rt Hon DerekMcIsaac, Shona
Foster, Michael Jabez (Hastings)Mckenna, Mrs Rosemary
Foster, Michael J (Worcester)McNamara, Kevin
Mactaggart, FionaShaw, Jonathan
McWalter, TonySheerman, Barry
McWilliam, JohnSheldon, Rt Hon Robert
Mallaber, JudyShipley, Ms Debra
Mandelson, Rt Hon PeterShort, Rt Hon Clare
Marsden, Gordon (Blackpool S)Simpson, Alan (Nottingham S)
Marsden, Paul (Shrewsbury)Singh, Marsha
Martlew, EricSkinner, Dennis
Meale, Alan Smith, Rt Hon Andrew (Oxford E)
Merron, GillianSmith, Angela (Basildon)
Michael, Rt Hon AlunSmith, Rt Hon Chris (Islington S)
Michie, Bill (Shef'ld Heeley)Smith, Miss Geraldine
Miller, Andrew(Morecambe & Lunesdale
Moffatt, LauraSmith, Jacqui (Redditch)
Moonie, Dr LewisSmith, Llew (Blaenau Gwent)
Moran, Ms MargaretSnape, Peter
Morley, ElliotSoley, Clive
Mountford, KaliSpellar, John
Mullin, ChrisSquire, Ms Rachel
Murphy, Denis (Wansbeck)Starkey, Dr Phyllis
Murphy, Jim (Eastwood)Steinberg, Gerry
Murphy, Rt Hon Paul (Torfaen)Stevenson, George
Naysmith, Dr DougStewart, Ian (Eccles)
O'Brien, Mike (N Warks)Stoate, Dr Howard
O'Hara, EddieStrang, Rt Hon Dr Gavin
Olner, BillStringer, Graham
O'Neill, MarlinStuart, Ms Gisela
Osborne, Ms SandraTaylor, Rt Hon Mrs Ann
Palmer, Dr Nick(Dewsbury)
Pearson, IanTaylor, Ms Dari (Stockton S)
Perham, Ms LindaTaylor, David (NW Leics)
Pickthall, ColinTemple-Morris, Peter
Pike, Peter LTimms, Stephen
Plaskitt, JamesTipping, Paddy
Pollard, KerryTodd, Mark
Pope, GregTouhig, Don
Pound, StephenTurner, Dennis (Wolverh'ton SE)
Prentice, Ms Bridget (Lewisham E)Turner, Dr Desmond (Kemptown)
Prosser, GwynTwigg, Stephen (Enfield)
Purchase, KenTynan, Bill
Quin, Rt Hon Ms JoyceVis, Dr Rudi
Quinn, LawrieWareing, Robert N
Rapson, SydWhite, Brian
Reed, Andrew (Loughborough)Whitehead, Dr Alan
Robertson, JohnWicks, Malcolm
(Glasgow Anniesland)Williams, Rt Hon Alan
Roche, Mrs Barbara(Swansea W)
Rogers, AllanWilliams, Alan W (E Carmarthen
Rooker, Rt Hon JeffWilliams, Mrs Betty (Conwy)
Rooney, TerryWinnick, David
Ross, Ernie (Dundee W)Woolas, Phil
Roy, FrankWorthington, Tony
Ruddock, JoanWright, Anthony D (Gt Yarmouth)
Ryan, Ms JoanWyatt, Derek
Salter, Martin
Sarwar, MohammadTellers for the Ayes:
Sawford, PhilMr. Tony McNulty and
Sedgemore, BrianMr. Mike Hall.
NOES
Allan, RichardButterfill, John
Ashdown, Rt Hon PaddyCash, William
Akinson, David (Bour'mth E)Chapman, Sir Sydney
Atkinson, Peter (Hexham)(Chipping Barnet)
Baldry, TonyChidgey, David
Beggs, RoyChope, Christopher
Beresford, Sir PaulClappison, James
Body, Sir RichardClark, Dr Michael (Rayleigh)
Boswell, TimClarke, Rt Hon Kenneth
Bottomley, Peter (Worthing W)(Rushcliffe)
Brady, GrahamClifton-Brown, Geoffrey
Brazier, JulianCollins, Tim
Brooke, Rt Hon PeterCran, James
Browning, Mrs AngelaCurry, Rt Hon David
Bruce, Ian (S Dorset)Davies, Quentin (Grantham)
Burns, SimonDavis, Rt Hon David (Haltemprice)
Day, StephenMacKay, Rt Hon Andrew
Dorrell, Rt Hon StephenMaclean, Rt Hon David
Emery, Rt Hon Sir PeterMcLoughlin, Patrick
Evans, NigelMaples, John
Faber, DavidMoss, Malcolm
Fabricant, MichaelO'Brien, Stephen (Eddisbury)
Fallon, MichaelÖpik, Lembit
Forth, Rt Hon EricOttaway, Richard
Fowler, Rt Hon Sir NormanPage, Richard
Fraser, ChristopherPickles, Eric
Gale, RogerRendel, David
Garnier, EdwardRobathan, Andrew
Gibb, NickRobertson, Laurence (Tewk'b'ry)
Gill, ChristopherRoe, Mrs Marion (Broxbourne)
Gillan, Mrs CherylRoss, William (E Lond'y)
Gorman, Mrs TeresaRuffley, David
Green, DamianSt Aubyn, Nick
Grieve, DominicShephard, Rt Hon Mrs Gillian
Gummer, Rt Hon JohnSimpson, Keith (Mid-Norfolk)
Hamilton, Rt Hon Sir ArchieSoames, Nicholas
Hammond, PhilipSpelman, Mrs Caroline
Hawkins, NickSpicer, Sir Michael
Heald, OliverSpring, Richard
Heath, David (Somerton & Frome)Stanley, Rt hon Sir John
Heathcoat-Amory, Rt Hon DavidSteen, Anthony
Hogg, Rt Hon DouglasStreeter, Gary
Horam, JohnSwayne, Desmond
Howarth, Gerald,(Aldershort)Syms, Robert
Hughes, Simon (Southwark N)Tapsell, Sir Peter
Jack, Rt Hon MichaelTaylor, John M (Solihull)
Johnson Smith, Rt Hon Sir Geoffrey Taylor, Sir Teddy
Townen, John
Key, RobertTrend, Michael
Kirkbride, Miss JulieTyrie, Andrew
Laing, Mrs EleanorWaterson, Nigel
Lait, Mrs JacquiWells, Bowen
Leigh, EdwardWhittingdale, John
Letwin, OliverWilkinson, John
Lewis, Dr Julian (New Forest E)Willetts, David
Lidington, DavidWinterton, Mrs Ann (Congleton)
Livsey, RichardWinterton, Nicholas (Macclesfield)
Loughton, Tim
Luff, PeterTellers for the Noes:
Lyell, Rt Hon Sir NicholasMr. John Randall and
McIntosh, Miss AnneMr. James Gray.

Question accordingly agreed to.